MEMORANDUM OPINION
This lawsuit challenges actions by Todd Dillard, the former Marshal of the Superior Court of the District of Columbia, the United States Marshal Service (“USMS”), and the District of Columbia. Plaintiffs complain that from December 2, 1999 to April 25, 2003 (the “Class Period”), the Superior Court Marshal subjected all female (but not male) arrestees
Plaintiffs propose certification of a “Fifth Amendment Class,” based on alleged violations of the equal protection component of the Fifth Amendment to the U.S. Constitution, composed of all female arrestees, regardless of charge, taken to the Superior Court for presentment during the Class Period,
Plaintiffs also seek to certify an “Alternative Fourth Amendment Class,” complaining that the Superior Court Marshall subjected all arrestees, males as well as females, to the blanket drop, squat, and cough strip searches, and that the District of Columbia knew or should have known about the illegal searches, but handed its arrestees over to the Superior Court Marshal during the Class Period anyway.
Plaintiffs argue that each class — the Fifth Amendment Class, the Fourth Amendment Class, and the Alternative Fourth Amendment Class — separately meets the requirements as a “hybrid” class. See Eubanks v. Billington,
Marshal Dillard and the USMS (collectively, the “Federal Defendants”) and the District of Columbia oppose the motion entirely, arguing, inter alia, that there is no live controversy and that the Plaintiffs lack standing to represent the interest of any future arrestees for purposes of injunctive relief. The District of Columbia further argues that Plaintiffs cannot meet the “adequacy of representation” requirement of Federal Rule of Civil Procedure 23(a)(4). For the reasons that follow, the motion will be granted in part and denied in part.
I. BACKGROUND
This case has been pending for over five years. The Plaintiffs and the United States first strove mightily, with yeoman help from the District of Columbia, to identify the female arrestees during the Class Period and then to reach a settlement. Only when those efforts failed unexpectedly did it become necessary to complete discovery and prepare for trial.
Plaintiffs allege that almost 16,000 female arrestees were subjected to the drop, squat, and cough strip searches during the period from December 2, 1999, three years before
Courts routinely certify strip search class actions similar to this one. See, e.g., Augustin v. Jablonsky (In re Nassau County Strip Search Cases),
II. LEGAL STANDARDS
The “party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all prerequisites of Rule 23(a) are satisfied and the class falls within one of the categories of Rule 23(b).” Bynum v. District of Columbia,
Under Rule 23(a) of the Federal Rules of Civil Procedure, there are four requirements for certification of a class:
1. the class is so numerous that joinder of all members is impracticable (“numer-osity”);
2. there are questions of law or fact common to the class (“commonality”);
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and
4. the representative parties will fairly and adequately protect the interests of the class (“adequacy”).
Fed.R.Civ.P. 23(a). Plaintiffs must also satisfy at least one of the subdivisions of Rule 23(b). A plaintiff satisfies Rule 23(b)(2) by showing:
the party opposing the class had acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2). A plaintiff satisfies Rule 23(b)(3) by showing:
(1) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed.R.Civ.P. 23(b)(3).
In deciding a motion for class certification, the “inquiry does not extend to an examination of the merits of the case. Instead, the legal standard is whether the evidence presented by plaintiffs establishes a ‘reasonable basis for crediting [plaintiffs’] assertions.’ ” Bynum,
III. ANALYSIS
The Federal Defendants resist class certification. Only two of their arguments are serious: First, they contend that there is no live controversy, because Marshal Dillard has retired and the USMS has ceased the practice (i.e., the case is moot); and second, the Federal Defendants contend that the named Plaintiffs do not have standing to represent the interests of future arrestees to support the request for injunctive relief.
The District of Columbia argues that the request for Rule 23(b)(2) certification (for injunctive relief) should be denied as moot because the Federal Defendants have changed their search policy. It also argues that there is a lack of predominance of common issues pursuant to Federal Rule of Civil Procedure 23(b)(3) in that there is no evidence concerning the injuries any representative Plaintiff or other class member may have suffered. See District of Columbia’s
The Court agrees that there is a lack of factual support concerning the existence of the Alternative Fourth Amendment Class. Therefore, the Court will deny the request for certification of the Alternative Fourth Amendment Class without prejudice. See Wagner v. Taylor,
The Court will examine each requirement for class certification for the Fourth and Fifth Amendment Classes in turn.
A. Existence of a Class
“It is axiomatic that for a class action to be certified a ‘class’ must exist.” Barnes v. District of Columbia,
B. Requirements of Rule 23(a)
All class actions certified under Rule 23 must meet certain prerequisites listed in subsection (a): there must be numerosity of class members, common questions of law or fact, the representative(s) must be typical of the class, and his or her representation of the class must be adequate. Fed.R.Civ.P. 23(a).
1. Numerosity
Rule 23(a)(1) provides that a class action may be maintained only if “the class is so numerous that joinder of all members is impracticable.” The “numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” See Bynum,
There is no question that the proposed Fourth Amendment and Fifth Amendment classes here are so numerous that joinder of all members is impracticable. Defendants do not dispute Plaintiffs’ assertion, using data drawn from the D.C. Metropolitan Police Department database system (“MPD Data”) and from the D.C. Superior Court database system (“CIS Data”), that there could be as many as 16,000 members in the Fifth Amendment Class and over 6,000 members in the Fourth Amendment Class. See Pis.’ Mem., Ex. 24 (Kriegler Aff. ¶ 11). Furthermore, Plaintiffs have submitted affidavits from numerous individuals who claim to have been subjected to the strip search policy at issue. The Court, at
2. Commonality and Typicality
The commonality requirement of Rule 23(a)(2) states that there must be “questions of law or fact common to the class.” However, it is not necessary that every issue of law or fact be the same for each class member. Rather, if “there is some aspect or feature of the claims which is common to all,” the requirement is satisfied. Barnes,
The typicality requirement of Rule 23(a)(3) is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol A. by Forbes v. Giuliani,
Plaintiffs have successfully established that there is sufficient commonality and typicality for both classes. First, “a strip-search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual,” Wood v. Clemons,
Regarding typicality, Rule 23 does not require that the representative plaintiffs endured precisely the same injuries that may have been sustained by other class members, only that the harm complained of be common to the class, and that the named plaintiffs demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical. Bynum,
3. Adequacy of Representation
Federal Rule of Civil Procedure 23(a)(4) requires that certified classes have adequate representation. This requirement involves both adequacy of the named plaintiffs and adequacy of counsel. The requirement is met when: (1) there is no conflict of
The Court sees no conflicts of interest between the representative Plaintiffs and the proposed Fourth and Fifth Amendment Classes. The issues presented by the named representatives mirror those faced by the putative class members. Also, the Court sees no conflict in these Plaintiffs ultimately representing the Alternative Fourth Amendment Class if, as the Federal Defendants have hinted, see Federal Defs.’ Mem. in Opp’n to Pis.’ Mot. for Class Certification (“Fed. Defs.’ Mem.”) at 3, but the existing record contradicts, males were subjected to the same blanket drop, squat, and cough procedure. However, any alleged conflict can be resolved at a later date if, in fact, the Court revisits the issue of certification of the Alternative Fourth Amendment Class.
Plaintiffs’ counsel, experienced civil rights class action litigators who have participated in multiple class actions, are capable of representing the interests of the class in a satisfactory manner and Defendants do not argue otherwise. The Court is satisfied that the Plaintiffs have fulfilled the requirements of Rule 23(a)(4).
C. Rule 23(b) Requirements
After the requirements under Rule 23(a) are met, a putative class must demonstrate that it fits under one of Rule 23(b)’s class types. Plaintiffs seek to certify the Fourth and Fifth Amendment Classes as “hybrid classes” under both Rules 23(b)(2) and (b)(3). For the reasons that follow, the Court will deny this request for “hybrid class” certification and will certify both classes under Rule 23(b)(3) only.
1. Rule 23(b)(2) Requirements
i. Appropriateness of Equitable Relief
To certify a Rule 23(b)(2) class for injunc-tive or declaratory relief, Plaintiffs must demonstrate that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2); Barnes,
ii. Mootness
There is no dispute over the facts that Marshal Dillard has retired and that the USMS stopped performing these blanket searches in 2003, after this lawsuit was filed. Superior Court Marshal Stephen Conboy attests that he has no plans to reinstate the policy. See Fed. Defs.’ Mem., Declaration of Stephen T. Conboy (“Conboy Deck”) ¶¶ 2-5. However, these facts alone do not moot Plaintiffs’ Fourth Amendment Claim for in-junctive relief.
In order to assert claims on behalf of a class, a named plaintiff must have personally sustained, or be in immediate danger of sustaining, “some direct injury as a result of the challenged statute or official conduct.” Armstrong v. Davis,
A case is moot if a defendant can demonstrate that two conditions have been met: (1) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation; and (2) there is no reasonable expectation that the alleged wrong will be repeated. Doe v. Harris,
Plaintiffs argue that their case is not moot because the Defendants continue to assert that the challenged practices were fully constitutional, thus leaving Defendants free to resume the objectionable searches after dismissal. See Pis.’ Reply in Supp. of Mot. for Class Certification (“Pis.’ Reply”) at 7. Plaintiffs also point out that some of the named Plaintiffs, and certainly many of the putative class, are recidivists who can expect to be presented at Superior Court in the future where a resumed search practice would once against violate their constitutional rights. Id. at 6. Finally, Plaintiffs note that “[t]he affidavit from Stephen Conboy says he has no plans to reinstitute the policy, but does not state categorically that he will not.” Id. at 2. Marshal Conboy, serving as Acting Superior Court Marshal and Superior Court Marshal since February 2004, attests:
Several years ago, [the District of Columbia Superior Court (“DCSC”)] instituted a new policy of body searches that discontinued the practice of conducting “strip searches” of arrestees placed in DCSC custody in the DCSC cellblock in the absence of an individualized finding of reasonable suspicion, if not probable cause.
The current DCSC policy and practice (DM permits a strip search only upon an individualized finding of reasonable suspicion, if not probable cause; and (ii) insures that such searches will be applied evenhandedly to both men and women arres-tees and detainees. This policy has been enforced and uniformly applied by all DCSC cellblock personnel since I assumed the position of Acting United States Marshal.
Based on the current DCSC policy and practice, it is unlikely that arrestees in the custody of DCSC personnel in the DCSC cellblock will be subjected to strip searches which are not justified by reasonable suspicion in the future.
I have no plan or desire, [sic] to modify the current policy or practice that limits strip searches as described in this declaration.
Fed. Defs.’ Mem., Declaration of Stephen T. Conboy (“Conboy Deck”) ¶¶ 2-5.
The Court finds that Marshal Conboy’s statement has insufficient finality for either the Plaintiffs or the Court to be certain that the Superior Court Marshal will not revert to the prior search policies. The Marshal cannot be left “free to return to his old ways.” Friends of the Earth, Inc.,
iii. Standing
In a suit to obtain prospective injunctive relief, a plaintiff must show a real and immediate threat of future injury to establish a viable case or controversy. City of Los Angeles,
Entitlement to injunctive relief is a question of equity and requires “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” City of Los Angeles,
Finding that the Plaintiffs lack standing to obtain prospective injunctive relief, the Court declines to certify Rule 23(b)(2) classes, and will dismiss the USMS from this lawsuit.
2. Rule 23(b)(3) Requirements
Despite the fact that Plaintiffs lack standing to seek equitable relief, they do not have to wait another day to litigate their right to damages. The Court will certify the Fourth and Fifth Amendment Classes under Rule 23(b)(3) because: (1) class-wide issues predominate and (2) a class action is “superi- or to other available methods to the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3); see Bynum,
i. Predominance of Common Questions at Law
“In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.” Amchem Products, Inc. v. Windsor,
Federal Defendants argue that Plaintiffs have failed the predominance test because individualized determinations will be necessary on the issue of liability. See Fed. Defs.’ Mem. at 2 (“[W]hat is clear in this action is
The District of Columbia also argues that Plaintiffs have failed the predominance test, alleging that Plaintiffs have not produced sufficient evidence that common issues predominate on damages. See D.C. Defs.’ Mem. at 3 (“Up to this point, the plaintiffs have not presented sufficient evidence for the court to determine whether common issues predominate pursuant to Rule 23(b)(3).... [Njone of the named plaintiffs [has] given testimony regarding their experience in the Superior Court cellblock or about any ‘injury they may have suffered as a result of the search .... ’ ”). The Court disagrees that determination of damages in this case would require individualization such that Plaintiffs cannot establish predominance. First, it may be the case that the “determination of damages in this case [does not] require individualization.” See Dellums v. Powell,
ii. Whether Class Action is Superior
The second prong of Rule 23(b)(3) is superiority. Under this requirement, “maintaining the present action as a class action must be deemed by the court to be superior to other available methods of adjudication. A case will often meet this standard when ‘common questions of law or fact permit the court to consolidate otherwise identical actions into a single efficient unit.’ ” Bynum,
The Court has already concluded that the size of the putative class makes joinder of individual parties impracticable and that there are issues of law and fact common to the potential class members. It is also likely that the economic stake of each putative Plaintiff would be too small to suggest that individual suits should be brought. See By-num,
D. Notice to Potential Class Members
Federal Rule of Civil Procedure 23(c)(2) provides that, in any class action maintained under Rule 23(b)(3), notice shall be given to the class in the best practicable manner. As required by the Rule, the notice shall advise each potential class member that she can choose to opt out of the class; that the judgment, whether favorable or not, will bind members who choose not to opt out; and that individual class members who do not request inclusion may, if they so desire, enter an appearance through counsel. Fed. R.Civ.P. 23(c)(2). Within 30 days of this Memorandum Opinion, the parties shall file a joint proposal regarding class notification procedures. If the parties are unable to reach agreement on the terms of the proposed order, the parties shall file separate orders. The Court notes that Plaintiffs have submitted a Proposed Trial Plan, see Pis.’ Mem., Ex. 14 [Dkt. # 139], detailing proposals for, inter alia, possible bifurcation of a trial into liability and damages phases and methodologies for potential damage calculations. The Court reserves ruling on those proposals. However, if the parties believe that these issues must be resolved before the process for notification may commence, that should be detailed in the forthcoming joint or separate proposals.
E. Appointment of Class Counsel
Federal Rule of Civil Procedure 23(g)(l)(C)(i) requires the Court to appoint adequate class counsel to represent the class after considering: “(1) the work counsel has done in identifying or investigating potential claims in this action, (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel’s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.” See By-num v. District of Columbia,
As discussed above, the Court is satisfied that Plaintiffs’ counsel are experienced class action litigators who are competent to represent Plaintiffs. As such, they will be appointed class counsel for the Fourth and Fifth Amendment Classes.
IV. CONCLUSION
Plaintiffs’ claims for injunctive and declaratory relief must be dismissed for lack of standing. Because Plaintiffs sought only such equitable relief from the USMS, the USMS will be dismissed from this case. The Court will certify Rule 23(b)(3) classes for both the Fourth Amendment and Fifth Amendment Classes. The Court is satisfied that Plaintiffs’ proposed class definitions for these two classes, with some modification, are adequate pursuant to Federal Rule of Civil Procedure 23(c)(1)(B). Plaintiffs’ motion for certification of an Alternative Fourth Amendment Class of men and women will be denied without prejudice for lack of any factual basis beyond the allegations in the Second Amended Complaint. Plaintiffs’ counsels William Claiborne and Barrett Litt will be appointed class counsel. A memorializing order accompanies this Memorandum Opinion.
Notes
. "Arrestee," as used herein, is a person who was arrested and brought to D.C. Superior Court for presentment pursuant to Rule 5 of the Superior Court Rules of Criminal Procedure, but had not yet been presented to a judge or magistrate at Superior Court. See Pis.’ Mem. in Supp. of
. As set forth in the Second Amended Complaint [Dkt. # 84], the "Fifth Amendment Class” is defined as:
Each woman who, during the Class Period ..., was (i) while in the Superior Court Cell Block or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arres-tees; (iv) subjected to a blanket strip, visual body cavity and/or squat search.
Second Am. Compl. ¶ 191.
. As set forth in the Second Amended Complaint, the "Fourth Amendment Class” is defined as:
Each woman who during the ... Class Period ... was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.
Second Am. Compl. ¶ 178.
. In the accompanying Order, the Court has made slight modifications to the class definitions in order to reflect the Court’s decisions in the instant Memorandum Opinion.
. Although the Court does not assess the merits of Plaintiffs' claims now, it is appropriate at the class certification stage to discuss justiciability concerns. See, e.g., In re Lorazepam & Clorazepate Antitrust Litigation,